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On January 28th President Bush signed into law a defense authorization bill (H.R. 4986) which amends
the Family and Medical Leave Act. Among other things, the new law expands FMLA leave to assist
military service members and their families. Two new kinds of leave are provided. Of course these changes will only apply to organizations subject to the FMLA

1. Active Duty Leave 
   This new leave will permit a qualified employee to take FMLA leave for “any qualifying
   exigency” arising out of the fact that the spouse, or a son, daughter, or parent of the
   employee is on active duty (or has been notified of an impending call or order to active duty) in
   the Armed Forces. This portion of the new law isn’t effective until the Department of Labor
   defines “qualifying exigency,” however employers are urged to provide this leave to qualifying
   employees.
   
   This new type of leave is an expansion of the existing 4 reasons for leave that a qualified
   employee can take for a total of 12 workweeks during any 12 month period: 
   
   1. The birth of a child and to care for the child
   2. The placement of a child for adoption or foster care
   3. To care for a spouse, son, daughter, or parent with a “serious health condition;” and
   4. Because of a “serious health condition” of the employee such that he/she can’t perform the functions of the position.
2. Caregiver Leave 
   This new service member family leave permits an eligible “spouse, son, daughter, parent, or
   next of kin” to take up to 26 workweeks during a 12 month period to care for a member of
   the Armed Forces, including a member of the National Guard or Reserves, who is undergoing
   medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on
   the temporary disability retired list, for a serious injury or illness.” The leave is available only
   during a single 12 month period. This portion of the law is effective immediately.

Some Things to Consider

• “Next of Kin”- You’ll notice that the caregiver leave provides leave for “next of kin,” a new
  concept for the FMLA. It’s defined as the “nearest blood relative.”
• “Serious Injury or Illness” - This term is not the same as “serious health condition” but involves
  an “injury or illness” . . . “that may render the member medically unfit to perform the duties of
  the member’s office, grade, rank or rating.”
• Several states have their own military leave laws. If you are in one of those you’ll have to know
  how those coordinate with the federal FMLA, and if the leaves can run concurrently.
• Both new types of leave may be taken on an intermittent or reduced schedule basis.
• The law authorizes substitution of paid leave for the new unpaid leaves.
• Employees are required to provide “reasonable and practicable” notice of leave that is
  foreseeable.

What to Do Now?
As at least part of this law is effective immediately, it’s important to notify your employees of the
changes. You will also need to make changes in your employee handbooks, policy manuals, and
related materials.

Since this is simply an expansion of the types of leave available under the FMLA it’s important to
remember that other FMLA provisions still need to be followed when implementing the new leave
provisions.

What to Watch For? 
In addition to formulating regulations regarding the new military leave, the Department of Labor is
working on other new Family and Medical Leave regulations. Some of the areas expected to be
addressed include:

• Requiring employees to call in to request a leave before taking it (unless there are
  extenuating circumstances)
• Clarifying medical certifications
• Reviewing unscheduled leave for chronic conditions
• Increasing employee awareness of FMLA rights

The text of the changes is not yet available so we’ll have to wait for more details. But the DOL
recently sent the proposed changes to the Office of Management and Budget. Once approved,
they will be published for a 60 day comment period in the Federal Register. The new military
related leave law may hurry them along. No word on when the DOL may revise its FMLA
notices, or poster.

For more information go to the Department of Labor’s website at: www.dol.gov/esa/whd

 

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